Opinion

McGee v. Suciu

Court
District Court, S.D. Ohio
Filed
Jul 28, 2020
Cited by
0 cases
Authority
More cited than 28.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KRISTOPHER MCGEE,

Plaintiff,

Civil Action 2:20-cv-1625

v. Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

S UCIU, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s Motion for Default Judgment. (Doc. 7). For

the reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be DENIED.

The Undersigned granted Plaintiff’s Motion for Leave to Proceed in forma pauperis on

April 1, 2020, and directed the United States Marshal to effect service by certified mail. (Doc. 2).

On May 12, 2020, Plaintiff filed a “Declaration for Entry of Default.” (Doc. 5). Because the

docket did not reflect executed service on any Defendant, the Clerk did not enter default. On June

24, 2020, when the docket still did not reflect that Defendants had been served, the Clerk prepared

another service packet and resent it to the United States Marshal for service. Shortly thereafter,

on July 13, 2020, summons were returned executed as to Defendants David Suciu, Erin Fuller, and

Nurse Brown, making their answers due by July 23, 2020. On July 17, 2020, Plaintiff filed a

Motion for Default Judgment. (Doc. 7). Defendants timely filed their answers on July 22 and July

23, 2020. (See Docs. 8, 10). The Undersigned issued a scheduling order on July 23, 2020. (Doc.

12).

As Defendants note in their responses to Plaintiff’s Motion, (see Docs. 9, 11), under Rule

12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Defendants’ 21-day timeframe within

which to respond to the Complaint did not begin until they were served on July 2, 2020.

Defendants, therefore, had until July 23, 2020, to respond to Plaintiff’s Complaint, and they timely

did so on July 22 and July 23, 2020. (See Docs. 8, 10). Accordingly, because Defendants timely

responded to Plaintiff’s Complaint, they are not in default, and it is RECOMMENDED that

Plaintiff’s Motion for Default Judgment (Doc. 7) be DENIED.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

days of this Report, file and serve on all parties written objections to those specific proposed

findings or recommendations to which objection is made, together with supporting authority for

the objection(s). A judge of this Court shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is made. Upon

proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the

findings or recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: July 28, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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